FCC Tackles Backlog of Indecency Inquiries

After a hiatus of what numerous attorneys say is close to two years, the FCC has begun to follow up on some of the one million-plus indecency complaints it has acknowledged are in its pipeline, including one concerning a Dr. Phil episode that aired four years ago.

This development will require broadcasters to once again hunt down old show tapes, and accrue documents and other materials—along with new lawyers’ fees—to defend their own or their networks’ programming decisions.

Two communications attorneys who spoke on background acknowledged that they are aware of at least three letters of inquiry sent out by the FCC in the last two months. After a complaint is filed, the letter is essentially the FCC’s first step in following up on a complaint if the Enforcement Bureau deems that it merits further inquiry. It is a step the FCC has heretofore been reluctant to take.

The letters come after a period of court-enforced—or at least prompted—inactivity on that front, the attorneys said.

That hiatus was due to the court decisions, including the FCC’s indecency findings against the Super Bowl halftime and swearing on Fox, that initially went against the commission.

FCC sources had suggested back in the wake of those two lower-court decisions, which overturned indecency findings, that the commission’s hands were effectively tied. The sources further implied it was a safe bet that no indecency complaints would be followed up anytime soon.

Republican Commissioner Robert McDowell said during his renomination hearing last June that it was past time for the commission to start clearing out the backlog of what was then some 1.2 million indecency complaints. An aide to the commissioner, while saying there has been no group briefi ng on indecency issues in general, added that there was no comment on the apparent resumption of indecency letters.

RENEWED CALL TO ACTION

But the Supreme Court’s remand and/or reversal of both decisions, and a new FCC chairman vowing to clear out a backlog of complaints of all types, has once again inspired action on the indecency front. “They have a ton of those things, and I think they are just trying to push them out,” said one of the communications attorneys.

He said that the complaint letter he was familiar with targeted a 2006 episode of Dr. Phil dealing with masturbation. He said that before this letter went out, it had been “approximately forever”—certainly more than a year—since he had seen a letter of inquiry on indecency out of the FCC.

The other attorney would not identify the subject of the complaint, but said it was a separate complaint and that he knew of at least one other, though he had not seen it.

Since the Dr. Phil complaint is not about nudity or profanity, it would appear to be a long shot for FCC action. But even though a letter does not mean the FCC will necessarily levy a fine, it still requires action on the broadcaster’s part. The station must compile evidence—tapes, scripts—and make its case for why it thinks the program was not indecent, or for extenuating circumstances if it does.

That process takes a lot of time and, more important, money, said one of the attorneys. While noting his own upside—he will be on the receiving end of some of this money—the attorney acknowledged the vexing downside for broadcasters.

“Inquiries are quite intrusive and burdensome,” he said. “It is not cost-free, even if you don’t hire me.”

ONLY THE BEGINNING

Both attorneys said they believed this was only the beginning of an effort to clear out the backlog. One, however, added that it could also be a gesture meant to demonstrate to legislators concerned about the indecency issue that commissioners weren’t sitting on their hands.

An FCC spokesman said the commission does not comment on its review of complaints.